ELIAS v. APFEL

The plaintiff, Mounir Elias ("Elias" or the "plaintiff"),
commenced this action pursuant to the Social Security Act,
42 U.S.C. § 405(g), seeking review of a final administrative
determination of the Commissioner of the Social Security
Administration (the "Commissioner" or the defendant) denying his
application for social security disability insurance benefits.
Presently before the Court is the defendant's motion for judgment
on the pleadings as well as the plaintiff's cross-motion for
similar relief, both pursuant to Rule 12(c) of the Federal Rules
of Civil Procedure. ("Fed.R.Civ. P."). The issues for the Court
to resolve are: (1) whether the Commissioner's denial of
disability benefits was supported by substantial evidence; (2)
whether Administrative Law Judge Daniel J. Slattery (the "ALJ")
erred by not requesting the presence of a vocational expert to
determine whether the plaintiff could perform light work; and (3)
whether the plaintiff received a fair hearing in that he appeared
before the ALJ without the benefit of counsel.

Elias, who is presently 56 years of age, alleges that he has
been disabled since December 31, 1993 due to severe neck and back
injuries. Elias is a high school graduate and completed three
years of schooling at Staten Island College, where he studied
mechanics and engineering. Elias has worked as a cab driver for
most of his adult life. From 1979 through December 1993, Elias
worked for a cab company, where he performed clerical work, and
drove, maintained, and repaired the cabs. On March 3, 1992, Elias
was injured in an auto accident. Elias claims that on December
31, 1993, the injuries caused by the auto accident forced him to
stop working.

After the auto accident on March 3, 1992, Elias went to South
Shore Hospital for treatment on March 7, 1992. X-rays of his
cervical and lumbosacral spines were negative. The hospital
diagnosis was cervical and lumbosacral spine spasm. Elias then
received follow up care from Dr. Joyce Goldenberg, a physician,
on March 10, 1992. A musculoskeletal exam revealed moderate
tenderness and restricted motion of his neck and back. Dr.
Goldenberg made a diagnosis of a whiplash syndrome, cervical and
lumbosacral myositis, and a low back sprain. The treatment
consisted of physical therapy and pain medication. Dr. Goldenberg
did not recommend that Elias undergo surgery.

On April 29, 1992, Dr. James Dana, a physiatrist, examined
Elias. Dr. Dana opined that Elias suffered from a cervical
sprain, right cervical derangement, and left sacroiliac joint
sprain. Dr. Dana ruled out a sprain of the cervical and
lumbosacral spine. He recommended physical therapy to the
cervical spine and additional testing.

From 1992 to 1995, Dr. Jacob Lehman, an orthopedist, examined
and treated Elias on numerous occasions. On June 2, 1992, Dr.
Lehman reported that Elias had tenderness and muscle spasm over
the neck and back, and that his right bicep and right ankle
reflexes were diminished at that time. Dr. Lehman was of the
opinion that Elias was totally disabled. He prescribed physical
therapy and Vicodin, a pain medication. Subsequent examinations
over the three year period indicated that while Elias
continuously had severe neck and back pain, his condition
occasionally improved due to the chiropractic treatment and
Vicodin medication. On February 24, 1994, Dr. Lehman reported
that he found disc damage in Elias' neck and lower back. However,
he did not conclude that Elias required surgery. In addition, in
reports prepared on different dates, Dr. Lehman stated that Elias
was either partially or totally disabled. Significantly, however,
Dr. Lehman's findings were in the context of reports to the
Workers' Compensation Board, which simply asked the treating
physician whether the patient is partially or totally disabled.

On January 11, 1995, Elias applied for Social Security
Disability benefits. On February 11, 1995, Dr. Choi prepared a
report at the request of the Office of Disability Determination.
In her report, Dr. Choi indicated that she first examined Elias
on June 29, 1994, and thereafter saw him three times a week,
although the frequency of visits had been reduced to once every
two weeks at the time of the report. Dr. Choi's findings included
decreased sensation of the left extremities, normal and equal
deep tendon reflexes, no atrophy, no motor deficit, and positive
straight leg raising on the left at eighty degrees at rest. Dr.
Choi noted that Elias did not have significant abnormality in
gait, and did not require an assistive device to walk.

In the opinion of Dr. Choi, Elias could not continue to work as
a cab driver, but importantly, she concluded that Elias could
perform light work. Dr. Choi specified that Elias could lift and
carry a maximum of twenty pounds, and stand and/or walk, as well
as sit, up to six hours a day.

On February 23, 1995, at the request of the Administration, Dr.
S. Dutta, a surgeon, conducted a consultative examination. After
physically examining Elias, Dr. Dutta made a diagnosis of a
herniated disc at the L4-5 level with left lumbar radiculopathy.
Significantly, Dr. Dutta also concluded that Elias was able to
perform limited desk work on a part time basis.

C. The Hearing

Elias appeared pro se before the ALJ on June 12, 1996. At the
time of the hearing, Elias was solely under the care of a
chiropractor and was taking Vicodin medication. Elias testified
that he lived with his wife. He also testified that he had pain
in the middle of his back, as well as in his shoulders. Elias
claimed that he had difficulty sleeping, and that the Vicodin
made him feel "half dead." He was able to dress himself, although
his day often consisted of "wandering around" as he lacked
concentration. Elias would sometimes go with a friend to "visit
people or go to church." He did not perform housework, nor did he
shop. Elias further stated that he could not sit and stand for
prolonged periods, and that he did not walk much. As such, ...

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